Toni Fox-Bryant & Anor v The Financial Conduct Authority

Under Tribunal Procedure (Upper Tribunal) Rules 2008, Rule 10(3), a costs order may follow where a party brings proceedings which it should know cannot succeed. The Tribunal must assess unreasonable conduct against the applicable legal and evidential requirements.

Before making an order against an individual, the Tribunal must give an opportunity for representations and consider current financial means under Rule 10(7). The award remains discretionary and must be fair and just. Where means permit, a proportionate sum may be assessed summarily.

The applicants had sought privacy in proceedings concerning Financial Conduct Authority decision notices. The Upper Tribunal refused that privacy application in [2023] UKUT 00224 (TCC).

The Authority then applied under Rule 10(3)(d) of the Tribunal Procedure (Upper Tribunal) Rules 2008 for £2,805 costs, alleging that the privacy application and its conduct were unreasonable. The applicants opposed the application, relied on financial hardship material, and made a cross-application for the costs of their response.

The central issues were whether the applicants had acted unreasonably, whether their present means permitted a costs order, and whether summary assessment was appropriate.

1. The costs application was granted. The applicants were ordered to pay the Authority £2,805 within 28 days of 9 October 2023. Their cross-application was rejected.

2. Rule 10(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008 permits a costs award for unreasonable conduct. Applying the approach in Catanã v HMRC [2012] UKUT 172 (TCC), endorsed in Distinctive Care v HMRC [2019] EWCA Civ 1010, the Tribunal held that the rule encompasses proceedings brought when the party should know that they cannot succeed.

3. The privacy application was unreasonable. The applicable privacy law required cogent evidence of unfairness or disproportionate damage, with a significant likelihood of serious harm rather than a mere possibility. One applicant supplied unsupported and unparticularised assertions, the other supplied no evidence of damage, and relevant information was already public. The Tribunal therefore found a clear gap between the evidence and the requirements for a successful application.

4. The absence of an unreasonable-conduct finding in the earlier privacy decision did not prevent a costs order. That earlier decision determined privacy; unreasonable conduct was a separate issue for the costs decision.

5. Having given the applicants an opportunity to address their means as required by Rule 10(7), the Tribunal assessed their current financial position. It declined to assume that disputed regulatory penalties would become payable. Their assets and income showed that they could afford the modest costs sum. The amount was reasonable and proportionate, and summary assessment was appropriate.

• Upper Tribunal (Tax and Chancery Chamber): The privacy application was refused in [2023] UKUT 00224 (TCC). This subsequent interlocutory decision allowed the Authority's costs application arising from that application.